GROUP 3: INTERVENOR LGBT ALLIANCE

BLOCK G02 - CONSTITUTIONAL LAW II - Tony La Vi​ña

ALMASE, Arjuna D.
ALON, Jon Polo A.
ARUGAY, Angela Justine C.
COLOBONG, Stephen
GO, Meg Tiffany C.
JOSOL, Mark Dave C.
PATALUD, Maria Celina A.
SANTIAGO, Ramon Jose
SOBREVEGA, Arjean Dawn Q.

1
 Republic of the Philippines
SUPREME COURT
Manila City

Save Only True Marriage Coalition,

All Religions Alliance,
Amicus Curiae Professor Straight,
Complainant

-versus-

Mayor Georgina,
Ramon and Fredo,
LGBT Alliance,
Respondent
x-------------------------------------------------------------------------------x

I. STATEMENT OF FACTS

1. Ramon and Fredo are the octogenarian lovers who have decided to marry

before they die. In this case, the daughter of Ramon, Georgina who is

also the city mayor, had ordered the issuance of a marriage license and

hopes to solemnize the marriage.

2. Petitioner Save Only True Marriage Coalition had gone to the Supreme

Court to question the issuance of said marriage license on the basis that

such an action is a violation of the Family Code. The Court issued a TRO

and has now called the parties for oral arguments.

II. ISSUES OF THE CASE

I. Does Articles 1 and 2 of the Family Code violate the due process
clause of the constitution?

2
 II. Does Articles 1 and 2 of the Family Code violate the equal
protection clause of the constitution?

III. Do same sex couples have a constitutional right to marriage based

on the right to privacy or other constitutional right?

III. EVALUATION

I. ARTICLES 1 AND 2 OF THE FAMILY CODE IS INVALID AND

UNCONSTITUTIONAL FOR DEPRIVING MEMBERS OF THE
LGBT COMMUNITY OF DUE PROCESS.

A. Applying the strict scrutiny test, there is no reason to limit marriage

between a man and a woman as it does not pursue any compelling
government purpose.

3. Applying the strict scrutiny test, Articles 1 and 2 of the Family Code is
unconstitutional because there is no rational connection between the means
of limiting marriage to opposite-sex couples and the compelling state
interest of protecting marriage as the foundation of the family.

4. Petitioner submits the strict scrutiny test is appropriate as mentioned

Articles deal with the subject of gender as an essential requisite for
marriage; as such, these provisions may be construed to be regulations of
gender with regard to marriage. The Supreme Court explained in the case of
White Light Corporation vs. City of Manila:

''In terms of judicial review of statutes or ordinances, strict scrutiny

refers to the standard for determining the quality and the
amount of governmental interest brought to justify the
regulation of fundamental freedoms. Strict scrutiny is used
today to test the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights as
1
expansion from its earlier applications to equal protection.”

2
5. Ordinarily, there is a presumption of validity when it comes to statutes.
However, such presumption is reversed when the strict scrutiny test is
applied as stated by the Supreme Court:

1
White Light Corp. v. City of Manila, G.R. No. 122846, January 20, 2009, 596 PHIL 444

2
Agpalo, Ruben E., “Statutory Construction”, Rex Book Store Inc., 6​th​ Edition (2009), p. 66

3
“The application of the strict scrutiny analysis to petitioners' claims for
provisional relief warrants the inevitable conclusion that the trial
court cannot deny provisional relief to the party alleging a prima
facie case alleging government infringement on the right to free
expression without hearing from the infringer the cause why its
actions should be sustained provisionally. ​Such acts of
infringement are presumptively unconstitutional​, thus the trial
court cannot deny provisional relief outright since to do so
would lead to the sustention of a presumptively unconstitutional
act. ​It would be necessary for the infringer to appear in court and
somehow rebut against the presumption of unconstitutionality
for the trial court to deny the injunctive relief sought for in cases
where there is a prima facie case establishing the infringement of
3
the right to free expression.”

6. Proceeding to the application, for a statute to pass the strict scrutiny test
under substantive due process, this Honorable Court explained in the case of
City of Manila vs. Laguio, Jr. that:

“If a law is in an area where only rational basis review is applied,

substantive due process is met so long as the law is rationally
4
related to a legitimate government purpose.”

7. According to the preamble of Executive Order No. 209, or the Family

Code, one of the reasons for its enactment is because “there is [a] need to
implement policies embodied in the new Constitution that strengthen
marriage and the family as basic social institutions and ensure equality
5
between men and women.” Hence, it can be said that its compelling state
interest is in line with the provisions of Section 2, Article XV of the 1987
6
Constitution. Thus, it can be said that the Family Code indeed has a
compelling state interest since it is laid down in the Constitution as the Court
ruled in

“As the subject and purpose of agrarian reform have been laid down by
the Constitution itself, we may say that the first requirement has

3
Newsounds Broadcasting Network, Inc. v. Dy, G.R. Nos. 170270 & 179411, April 2, 2009, 602 PHIL 255

4
City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 495 PHIL 289

5
Family Code of the Philippines, Executive Order No. 209 , July 6, 1987.

6
Section 2, Article XV stales: "Marriage, as an inviolable social institution, is the foundation of the family
and shall be protected by the State."

4
 been satisfied. What remains to be examined is the validity of the
7
method employed to achieve the constitutional goal.”

8. Even though a compelling state interest exists, Petitioner submits that the
limitation of marriage between a man and a woman, as provided by the
provisions of the Family Code, is not necessary to achieve such interest. To
emphasize, the state interest is the protection of marriage as the foundation
of the family and not the protection of heterosexual relationships.
Furthermore, the Constitution itself is silent as to the genders of those who
may enter into marriage.

B. By definition, a “Family” cannot be limited to heterosexual

marriages as homosexuals may constitute it as well.

9. According to Black's Law Dictionary, a family is “a collective body of

8
persons who live in one house and under one head or management.”
Merriam Webster defines family as “a group of people who are related to
9
each other.”

10. From these very definitions, there is no mention that a family must be
borne from a heterosexual marriage. Further, it is important to note that
homosexual persons can be essential members of a family just as much as
heterosexual persons are. Homosexuals may also establish their own
families and adopt children under Philippine law, either formally as an
individual or informally together with a partner.
.
II. ARTICLES 1 AND 2 OF THE FAMILY CODE IS INVALID AND
UNCONSTITUTIONAL FOR DEPRIVING MEMBERS OF THE
LGBT COMMUNITY OF EQUAL PROTECTION OF THE LAW.

A. There is no substantial distinction between same-sex and

opposite-sex couples; hence, the classification is not applied equally
to all members of the same class.

11. In the case of ​Garcia v. Drilon,​ the Court stated that “equal protection
simply requires that all persons or things similarly situated should be treated

7
Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No.
78742, 79310, 79744, 79777, July 14, 1989, 256 PHIL 777

8
Black's Law Dictionary 2"'' Edition Online, http://thelawdictionary.org/family/, last accessed on February
9, 2019

9
Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/family/, last accessed on
February 9, 2019

5
 10
alike, both as to rights conferred and responsibilities imposed.” To this the
Supreme Court cited the disquisition in ​Victoriano v. Elizalde Rope Workers'
Union​:

“The guaranty of equal protection of the laws is not a guaranty of

equality in the application of the laws upon all citizens of the
state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality
of operation of statutes does not mean indiscriminate operation
on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows

classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The
very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which
make for real differences; that it must be germane to the purpose
of the law; that it must not be limited to existing conditions only;
and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
11
and is not palpably arbitrary.”

12. However, there is no reasonable distinction between heterosexuals and

homosexuals to grant the right of marriage to the former, but not the latter.
Hence, it is considered a suspect classification and must undergo the strict

10
Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 712 PHIL 44

11
Victoriano v. Elizalde Rope Workers' Union, G.R. No. L-25246, September 12, 1974, 158 PHIL 60

6
scrutiny test as explained by the Supreme Court in the case of Serrano v.
Gallant Maritime Services, Inc.:

“Under American jurisprudence, strict judicial scrutiny is triggered by

suspect classifications based on race or gender but not when the
12
classification is drawn along income categories.”

13. Further, as previously discussed, it is not germane to the purpose of the

law to classify between homosexuals and heterosexual, since the
Constitution itself is silent as to whether or not persons of the same sex may
marry each other, effectively removing its compelling state interest.

III. SAME SEX COUPLES HAVE A CONSTITUTIONAL RIGHT TO

MARRIAGE BASED ON THE RIGHT TO PRIVACY AND THE
RIGHT TO LIBERTY.

A. The constitution protects the right of the people to a private life and
to liberty.

14. First of all, petitioner strongly argue that Articles 1 and 2 of the Family
Code is unconstitutional as it discriminates same sex couples on their right
to privacy, a constitutional right. Prohibiting the marriage of same sex
couples posit inequality if one will argue that “marriage is a special contract
of permanent union between a man and a woman…”13; and that “no
marriage shall be valid, unless these essential requisites are present: (1)
Legal capacity of the contracting parties who must be a male and a female”14

15. To strictly construe and interpret on these provisions of the said articles,
we stand on the basis that it is unconstitutional and it violates the right to
privacy. As it violates the provisions of our Constitution, specifically the Bill
of Rights:
Section 1, Article III: “No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be denied
the equal protection of the laws.”15

12
Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, March 24, 2009, 601 PHIL 245

13
​ ​Family Code of the Philippines, Executive Order No. 209 , July 6, 1987, Article 1 
||​|

14
​id., Article 2 
15
​ CONST., Article III, Section 1 
|||​

7
 Section 3(1), Article XV: “The State shall defend the right of spouses
to found a family in accordance with their religious convictions and
the demands of responsible parenthood.”16

16. It is high time for our country to be more “liberal” in understanding that
marriage does not only equate to the necessity of one partner bearing a child
but it is a right that is for every person and that this right must be protected
by our laws. This notion is proved by the lack of any gender requirement in
the provisions of marriage in the Universal Declaration of Human Rights
(UDHR). ​Article 12 of the UDHR enshrines the right to a private life and
associated freedoms, it states:

“No one shall be subjected to arbitrary interference with his privacy,

family, home or correspondence, nor to attacks upon his honour and
reputation. Everyone has the right to the protection of the law against
such interference or attacks.”17

Article 16 of the Universal Declaration of Human Rights states

that:

(1) Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at
its dissolution.

(2) Marriage shall be entered into only with the free and full consent
of the intending spouses,

According to the United States Supreme Court in Obergefell v. Hodges,

“The Constitution promises liberty to all within its reach, a liberty that
includes certain specific rights that allow persons, within a lawful realm, to
18 ​
define and express their identity”. The Philippine Constitution defines
marriage as an inviolable social institution, is the foundation of the family

16
​id. 
​UN General Assembly. (1948). ​Universal declaration of human rights​ (217 [III]
17

A). Paris.
18
​Obergefell v. Hodges, 576 U.S
8
 19
and shall be protected by the State.

History so provides that marriage is an essential right of people. In

Loving v. Virginia, the Supreme Court said that "The freedom to
marry has long been recognized as one of the vital personal rights
20
essential to the orderly pursuit of happiness by free men."

The right to marriage is grounded on the Bill of Rights, particularly

"the right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes
not contrary to law." The Supreme Court also defines marital union as
“a two-way process. An expressive interest in each other’s feelings at
a time it is needed by the other can go a long way in deepening the
marital relationship. Marriage is definitely not for children but for two
consenting adults who view the relationship with love amor gignit
amorem, respect, sacrifice and a continuing commitment to
21
compromise, conscious of its value as a sublime social institution.”

By not allowing same sex couples the right to marriage, they are also
deprived of the benefits and rights of a married couple; which violates
the equal protection clause provided for in the Constitution.
IV. CONCLUSION

Liberty is not a gift of the government but the right of the governed. Every
person is free, save only for the fetters of the law that limit but do not bind
him unless he affronts the rights of others or offends the public welfare.
Liberty is not derived from the sufferance of the government or its
magnanimity or even from the Constitution itself, which merely affirms but
does not grant it. Liberty is a right that inheres in every one of us as a
member of the human family. When a person is deprived of this right, all of
us are diminished and debased for liberty is total and indivisible.22

V. PRAYER

19 ​ ​
Section 2 Article 15 The 1987 Constitution.
20 ​
Loving v. Virginia, 388 U.S. 1 (1967).
21 ​
Chi Ming Tsoi vs. Court of Appeals and Gina Lao- Tsoi, GR No. 119190, 16 January 1997
22
Ordonez v. Director of Prisons, G.R. No. 115576, 4 August 1994, 235 SCRA 152.
9
WHEREFORE, premises considered, it is respectfully prayed that judgement be rendered
in favour of respondents and against petitioners by:

1. DECLARING same sex marriage constitutional

2. DECLARING same sex couples have a constitutional right to marriage based
on the right to privacy and the other constitutional guarantee to liberty.

Other just and equitable remedies under the circumstances are likewise prayed for.

University Parkway, Taguig, February 9, 2019.

(Sgd.)
COUNSEL FOR RESPONDENTS

10